Opinion
No. 3:02cv0394 AS
September 25, 2002
MEMORANDUM AND ORDER
On June 3, 2002, pro se petitioner, Jesse Murphy, an inmate at the Maximum Control Complex (MCC) in Westville, Indiana, filed a petition seeking relief under 28 U.S.C. § 2254. The Response filed on behalf of the respondent by the Attorney General of Indiana on August 30, 2002, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). The petitioner filed a Traverse on September 20, 2002, which this Court has carefully examined.
The petitioner is a convicted felon serving a sentence imposed by a court in the State of Indiana. He was the subject of a Conduct Adjustment Board (CAB) proceeding. The sanction included the demotion to earning class III and a deprivation of 365 days of earned credit time, which implicates Wolff v. McDonnell, 418 U.S. 539 (1974). He was also sanctioned to one year of disciplinary segregation and the imposition of suspended disciplinary segregation sanctioned in ISP-01-11-0059. The latter segregation issues are within Sandin v. Conner, 515 U.S. 472 (1995) and do not implicate Wolff. The Attorney General of Indiana has placed before this Court a massive amount of documents, exhibits 1 through 18, which are in the record and have been examined. This proceeding is designated as ISP-01-12-0035.
These events occurred at the Indiana State Prison in 2001. There was a verbal exchange between an officer named Griffin and this petitioner, which ended up with this petitioner spitting on Officer Griffin. Another officer observed the same. This petitioner was charged with battery by bodily waste and was processed where he entered a plea of not guilty and requested a lay advocate. He also requested four correctional officers and four offender witnesses. He also requested that the videotape from the "main street" security camera be reviewed. Two of those officers requested, Captain Batchelor and Lieutenant Ficklen, both responded that they were not present during the incident. Sergeant Walls observed the petitioner arguing with Officer Griffin but did not see him spit on Officer Griffin. The CAB reviewed the security videotape and concluded that battery could not be confirmed or denied. See Piggie v. McBride, 277 F.3d 922 (7th Cir. 2002). The disciplinary hearing was postponed on December 17, 2001 to obtain witness statements. Officer Griffin reaffirmed his previous statements and the hearing was postponed a second time in order to get witness statements.
An offender named Eskridge stated that he witnessed the conversation but that the petitioner spat on the ground, not on Officer Griffin. Inmate Carter refused to give a statement, and the petitioner waived Offender Boruff as his lay advocate. A disciplinary hearing finally took place on January 3 this year, and denied petitioner's request for a third postponement to get statements from Offenders Fuller and Abel. The CAB determined that statements from Fuller and Abel would be repetitive of the one already given by Eskridge. However, petitioner stated that all four offenders were present during the incident and would state that he did not spit on Officer Griffin. The petitioner was adamant that he did not spit on Officer Griffin.
This is a very close case considering the severity of the sanction. This Court has considerable worry, even under the liberal interpretation of Superintendent, Mass. Corr. Institution at Walpole v. Hill, 472 U.S. 445 (1985) and its progeny in this circuit, namely, Webb v. Anderson, 224 F.3d 649 (7th Cir. 2000), cert. denied, 2000 WL 1512783 (U.S.), McPherson v. McBride, 188 F.3d 784 (7th Cir. 1999), and Meeks v. McBride, 81 F.3d 717 (7th Cir. 1996)
It is also worth noting that ISP-01-11-0059 was the subject of a separate petition under 28 U.S.C. § 2254 here under Cause Number 3:02cv0395. Certainly, this Court did not see or hear the witnesses and for that matter did not see the videotape. There is some evidence to support the view that this petitioner spat on Officer Griffin. Obviously, there is considerable evidence to the contrary. However, this court cannot gainsay the function of the CAB to see and evaluate witness testimony, and for that reason, and in spite of some considerable doubt this Court must DENY relief under 28 U.S.C. § 2254. Additionally, this Court is not concerned with the denial of requested witnesses under Ponte v. Real, 471 U.S. 491 (1985), and Forbes v. Trigg, 976 F.2d 308 (7th Cir. 1992), cert. denied, 507 U.S. 950 (1993).
For all of these reasons, the petition for relief under 28 U.S.C. § 2254 is now DENIED.
IT IS SO ORDERED.